Nobody wants criminals to be armed. Ever. That’s what makes the concept of the universal—that is to say mandatory—background checks so appealing. But in truth, the practice of mandatory background checks raises a lot of flags and may put the brakes on the entire background check system.
Firearms ownership is a right. And in the U.S., that means a few things. Chiefly that firearms ownership may not be taxed and may not be registered. The Supreme Court and the Firearm Owners Protection Act (FOPA) have reinforced this: enumerated rights have a protected status. Unlike property, income or health insurance, rights cannot be taxed and registries are prohibited.
Where do background checks fit in? They cost money. They are performed by licensed gun sellers, who charge money for this service. This is important because if mandatory background checks use the system as it is in place now, the government will be putting a de facto tax on gun ownership.
On top of that, FFLs, Federal Firearms License holders, must keep ATF-accessible records of who applied for background checks, which is comparable to a registry, if distributed, not centralized.
Because face-to-face transfers cost nothing and records are not required this gives buyers an opportunity to opt out of the fee and stay off the books. Even though the vast majority of gun buyers opt in and purchase through FFLs and have their backgrounds checked (including people who aren’t allowed to own guns, giving purpose to the whole process) the existence of the face-to-face market, the lack of a universal background check, makes the background check system legal.
A mandatory background check is potentially unconstitutional on another front as well: the Fifth Amendment, the prohibition against self-incrimination.
As it stands, many law enforcement agencies use background checks to suss out people who may be of interest. While it is certainly in the public interest to prevent the sale of firearms to people who are suspected of violence or other heinous crimes, the background check is not discriminatory. And it simply is not legal to give up one right in order to exercise another.
Imagine if you had to give up the right to drink if you wanted to vote, because it was in the public interest that the electorate be made only of the abstinent. Imagine if you had to give up your rights against cruel and unusual punishment if you opted for a trial by jury, because it was in the interest of the public to keep court costs down. Imagine if you had to give up your right to bear arms to practice your faith, because it was in the public interest to make sure fundamentalists were unarmed. Rights cannot be ceded for other rights.
In fact, the court has held that some of the prohibitions that make a prohibited person, someone that can’t buy or own guns, are not constitutional in certain ways, citing the Fifth and naturally the Second Amendment. There is precedence against the system in place already; making it mandatory could break it.
And right now, the background check system is already operating beyond its capacity. With the massive surge in gun sales, waiting times after applying for background checks are getting extremely long. One FFL told us three weeks was his standard turnaround time.
Even though most gun sales are run through FFLs, right now, adding more will further increase the delay between buying and receiving a gun, highlighting another weak point with this system.
If the NICS background check system fails, is overloaded, or suspended for any reason, the entire country will lose their ability to purchase firearms, seriously undermining the right to bear arms.
There is also a strong slippery-slope argument, that what makes a prohibited person is subject to change, and that, combined with mandatory background checks, could be manipulated into a gun ban.
Simply put, there are many ways that making background checks mandatory is the background checks’ worst enemy; not merely unkind to other rights.
One way to side-step them is to keep background checks optional, but incentivize them, or rather, recognize the incentive that’s pre-existing. No law-abiding gun owner wants to sell a gun to a criminal; the incentive is already there, but the access is not. Right now, the NICS system is only open to licensed gun sellers. If it were available to all people, people selling guns would most certainly opt to use it simply for their own legal protection; it’s a crime to sell a gun to a prohibited person. The NICS system protects FFLs from committing that crime, why shouldn’t it be available for individuals?
There would have to be a limit on individual record-keeping, as this would also bring up Fourth and Fifth Amendment concerns; a person should not be forced to give up their rights against self-incrimination for selling their property, nor should they be the subject of investigation for it.
The idea of universal background checks is compelling, but deeply flawed under the surface. And it doesn’t begin to touch another subject: would it make a difference?
As it stands, the government doesn’t have the resources to pursue cases against people who falsify their background check information. And no conceivable background check could ever hope to prevent straw purchases. And finally, crime did not appreciably drop following the adoption of the NICS system.
Background checks do a pretty good job at what they’re actually designed to do: prevent those with good intentions from accidentally breaking the law. But as a way to curb crime or prevent violence, background checks are as useful as gun-free zones. They don’t touch the criminal world, and can’t.
But they do add another layer of bureaucracy and chip away civil rights. That’s what we really want, right?